Amicus Curiae Brief — Ten Eyck v. Leather

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IN THE

Supreme Court of the United States

MICHAEL TEN EYCK, individually, THOMAS LINDERT,

individually, CARMINE RESTIVO, JR., individually, and

ROBERT THOUBBORON, individually,

Petitioners,

v.

JOHN LEATHER,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Motion Of Amici Curiae The New York State Sheriffs’ Association

Institute, Inc.; The National Sheriffs’ Association; The Louisiana

Sheriffs’ Association; The Virginia Sheriffs’ Association;

The Illinois Sheriffs’ Association; The Florida Sheriffs’

Association; The Buckeye State Sheriffs’ Association;

The Alabama Sheriffs’ Association; The Georgia Sheriffs’

Association; The New Mexico Sheriffs-Police Association,

The Maryland Sheriffs’ Association; The Nebraska Sheriffs’

Association; The Indiana Sheriffs’ Association; The Idaho

Sheriffs’ Association; The California Sheriffs’ Association; And

The Oklahoma Sheriffs’ Association, For Leave To File Brief

Amici Curiae In Support Of Petitioners And Brief Amici Curiae

PETER R. KEHOE

Counsel of Record

THOMAS MITCHELL

McGovern, KEHOE AND MITCHELL

Attorneys for Amici Curiae

27 Elk Street

Albany, New York 12207

(518) 432-4318

167261 g

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

The New York State Sheriffs’ Association Institute, Inc.,

The National Sheriffs’ Association, the Louisiana Sheriffs’s

Association, the Virginia Sheriffs’ Association, the Illinois

Sheriffs’ Association, the Florida Sheriffs’ Association’ the

Buckeye State Sheriffs’ Association, the Alabama Sheriffs’

Association, the Georgia Sheriffs’ Association, the New

Mexico Sheriffs-Police Association, the Maryland Sheriffs’

Association, The Nebraska Sheriffs’ Association, The Indiana

Sheriffs’ Association, The Idaho Sheriffs’ Association, The

California Sheriffs’ Association, and The Oklahoma Sheriffs’

Association, hereby move, pursuant to Supreme Court Rule

37.2, for leave to file a brief amici curiae in support of the

petition for a writ of certiorari to the United States Court of

Appeals for the Second Circuit. Amici are filing this motion

because Respondent John Leather has declined to consent to

refiling of this amicus curiae brief. A copy of the proposed

brief is attached:

As more fully explained in the attached brief under

“Interest of Amici Curiae’, amici are national, and statewide

law enforcement organizations, and the members of all of

these organizations are directly affected by the applicability

of the decision of this Court in Heck v. Humphrey (512 U.S.

477 (1994). Thousands of individual police and peace officers

are members of the amici who seek to file a brief in this

case. They, of course, are subject to potential Section 1983

liability for many actions, since they daily exercise the police

powers of their respective jurisdictions. The decision in the

case at bar significantly expands the liability of the police

and peace officers, by essentially overturing the decision of

this Court in Heck, which in turn was based on long-standing

principles generally found not only in federal law, but

individual state laws as well.

The brief will assist the Court in determining whether

to grant certiorari because amici are well positioned to point

out how this case affects law enforcement officers around

the entire United States; the explicit challenge to the integrity

of this Court’s decision in Heck v. Humphrey as a result of

second-guessing and interpretation of concurring and

dissenting opinions to declare what a “new majority” of

Justices of this Court would decide with respect to the central

issue determined by Heck; and the need for this Court to

grant certiorari to protect police and peace officers, as well

as all other public servants, from a new and unfair source of

liability.

It is respectfully requested that the Court grant leave to

file the attached brief of the amici in this case.

Respectfully submitted,

PETER R. KEHOE

Counsel of Record

THOMAS MITCHELL

McGovern, KEHOE AND MITCHELL

Attorneys for Amici Curiae

27 Elk Street

Albany, New York 12207

(518) 432-4318

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TABLE OF CONTENTS

Page

ee odd co see uleu ce wews ue il

Ro eee so eeeuseesee l

EER Ee are ee l

EE OS SE PE rere we ee 2

Reasons for Granting the Writ ................. 4

a Cate ee a ekk eae ws 10

it

TABLE OF CITED AUTHORITIES

Page

Cases

Broughton v. State of New York, 37 N.Y.2d 451,

cert. denied, 423 U.S. 929 (1975) ............ 7

Burt v. Smith, 181 N.Y. 1 (1905), appe i dismissed,

Be Cs TEP CA eva ddeinee cee Pe Py oe 7

Cameron v. Fogarty, 806 F.2d 380 (2d Cir. 1986) ... 7

Clay v. Allen, 242 F.3d 679 (Sth Cir. 2001) ....... 6

Curiano v. Suozzi, 63 N.Y.2d 113 (1984) ........ 7

DiBlasio v. City of New York, 102 F.2d 654 (2d Cir.

ee SPE ee ee ree Oe pre er rr ee 7

Edwards v. Balisok, 520 U.S. 641 117 S. Ct. 1584,

ye es er een ere 5

Figueroa v. Rivera, 147 F.3d 77 (1st Cir., 1998) ... 7

Heck v. Humphrey (512 U.S. 477 (1994) ........ passim

Heaney v. Purdy, 29 N.Y.2d 157 (1971) ......... J

Rodriguez v. Penobscot County Jail, 2001

We Sea ee Os ME 52d bao ks keen 6

iil

Cited Authorities

Page

Spencer v. Kemna, 523 U.S. 1, 118 S. Ct. 978,

O04. BE SEP CUS svn cd ncceuavieacomae 6

Warner v. Orange County Dept. of Probation,

115: 8.36 3008 (26 Cir, 1967) oak eaeies ceaces 6

Whisenhunt v. Cornyn, N.D. Tex. 2001, 2001

Wh Se 6h os a ee ee ee 6

Wright v. Smith, 2001 WL 194060, N.D. Tex. 2001

caab ee ad oe ead 04 OK eee 6

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CONSENT OF THE PARTIES

Petitioners have consented to the filing of this brief,

amici curiae. '

INTEREST OF AMICI

This brief, amici curiae, is respectfully submitted on behalf

of the following organizations: the New York State Sheriffs’

Association Institute, Inc.; the National Sheriffs’ Association;

the Louisiana Sheriffs’s Association; the Virginia Sheriffs’

Association; the Illinois Sheriffs’ Association; the Florida

Sheriffs’ Association; the Buckeye State Sheriffs’ Association;

the Alabama Sheriffs’ Association; the Georgia Sheriffs’

Association; the New Mexico Sheriffs-Police Association;

the Maryland Sheriffs’ Association; the Nebraska Sheriffs’

Association; the Indiana Sheriffs’ Association, The Idaho

Sheriffs’ Association; The California Sheriffs’ Association, and

the Oklahoma Sheriffs’ Association.

The New York State Sheriffs’ Association Institute, Inc.

(NYSSAI) is comprised of each of the 58 Sheriffs in the State

of New York. Its purpose is to strengthen and enhance the office

of Sheriff, and to work with local, state and national

organizations similarly interested in providing effective law

enforcement services. NYSSAI is the collective voice for its

members before state and national governmental agencies and

private organizations that either oversee or otherwise influence

the delivery of police, corrections court security and civil law

enforcement services and functions that Sheriffs are entrusted

by law to perform.

1. The consent of the petitioners has been filed with the clerk

of this Court. The Respondent, John Leather, has declined to consent

to the filing of this amici curiae brief. This brief was authored by

the amici and counsel listed on the front cover hereof, and was not

authored, in whole or in part, by counsel for a party. No one other

than the amici and their counsel made any monetary contribution to

the preparation or submission of this brief.

2

Similarly, each of the other amici perform the same duties

and responsibilities in their respective states.

Every member of all of these organizations seeking

amici status are directly affected by the applicability of the

decision of this Court in Heck v. Humphrey (512 U.S. 477

(1994). The overturning of this Court’s decision in Heck, which

in effect has been accomplished by the Second Circuit in this

case, creates a new and unfair source a liability for police and

peace officers in particular, and for public servants in general.

The Second Circuit in this case, contrary to the express holding

of Heck, sanctions re-litigation and re-examination of issues

resolved against a convicted defendant in a state criminal trial,

by means of a federal Section 1983 lawsuit. This decision has

thus created a new liability for police and peace officers where

none existed before, either under federal law or under state laws

designed similarly to provide a forum for claims of unlawful

arrest or prosecution.

STATEMENT OF THE CASE

In early December, 1994, John Leather was arrested by

deputies of the Putnam County Sheriff's Office for driving while

intoxicated, a crime (misdemeanor) in the State of New York.

After a non-jury trial, Mr. Leather was convicted of the offense

of driving while his ability to operate a inotor vehicle was by

impaired by alcohol, a violation under New York law. Although

punishable by imprisonment, Mr. Leather, like most first time

offenders for this type of offense, was sentenced to paying a

fine and a surcharge, and also suffered a temporary suspension

of his driving privileges. Mr. Leather was entitled to appeal his

conviction to the Putnam County Court, but either failed or

declined to do so. Mr. Leather’s driving privileges were

eventually restored, and he paid the required fine and surcharge.

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In 1997, Mr. Leather sued the Putnam County Sheriff,

several deputies, and the County of Putnam, claiming that he

was “targeted” by the Sheriff's Office for the driving while

intoxicated arrest because of a prior political disagreement with

the Sheriff as to what agency should be responsible for the

operation of the county’s 9-1-1 call center. A Section 1983

lawsuit was commenced for compensatory and punitive

damages.

This Court had recently ruled, in 1994 (Heck v. Humphrey,

512 U.S. 477) that lawsuits in such cases are not allowed, and

that to recover in a Section 1983 suit, the plaintiff must show

that his conviction has been declared invalid or at least called

into question by a federal court’s issuance of a writ of habeas

corpus. In the case at bar, the only thing that the plaintiff,

Leather, did to challenge his conviction was to commence the

Section 1983 lawsuit. Based on these facts, the trial court below

dismissed the action in accordance with the clear ruling by this

Court in Heck.

The Second Circuit reversed that dismissal order and

allowed the case to proceed to trial. The Second Circuit made a

distinction between claimants who are in custody, and those

who are not in custody. The Second Circuit agreed that the

Heck rule should apply to Section 1983 claimants who are in

custody, since they can challenge their conviction by seeking

the issuance of a writ of habeas corpus. However, the Second

Circuit ruled that for those who are not in custody, there is no

availability (or, of course, need) for habeas corpus relief; as to

those claimants, Heck, the court declared, would not bar a

Section 1983 action for damages.

Mr. Leather’s case then proceeded to trial, where a jury

found for the plaintiff and awarded compensatory and punitive

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damages. The trial court, in a decision on a post-trial motion,

reduced the damages awards considerably, most notably

reducing punitive damages against Sheriff Robert

Thoubboron from $435,000 to $3,000. All defendants in the

Section 1983 action appealed to the Second Circuit Court of

Appeals, citing several grounds for appeal. With respect to

the Heck argument, the Second Circuit refused to reconsider

its earlier ruling that Heck should not apply to bar Leather’s

Section 1983 lawsuit in this case.

All the original defendants in the action, except for the

County of Putnam, now seek a writ of certiorari and have

raised the issue of the continued application of the Heck rule.

This amici curiae brief, if accepted by the Court, is filed in

support of the petitioners and on behalf of the New York

State Sheriffs’ Association Institute, Inc., as well as thirteen

other statewide and national law enforcement organizations

from all over the United States.

REASONS FOR GRANTING THE WRIT

In Heck v. Humphrey, this Court issued a clear and simple

rule applicable to the commencement of Section 1983 actions

where the claimant was a defendant in a state court criminal

trial. In order to recover damages for allegedly

unconstitutional conviction or imprisonment, or for other

harm caused by actions whose unlawfulness would render a

conviction or sentence invalid, Heck requires that a § 1983

plaintiff must prove that the conviction or sentence has been

reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such

determination, or called into question by a federal court’s

issuance of a writ of habeas corpus. This Court explained

that in announcing the rule, it did not add an exhaustion

Se ee ee See

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requirement upon § 1983 actions, as is generally required

for federal habeas corpus proceedings; rather, this Court

simply said that there should be no Section 1983 cause of

action where the state court conviction is not overturned or

at least “‘called into question”.

This “favorable termination” requirement was extended

by the Supreme Court to prisoner allegations of due process

violations in prison discipline hearings resulting in

deprivation of good-time credits in Edwards v. Balisok, 520

U.S. 641, 648, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997).

The rationale for the Heck rule has been called into

question by some federal courts when the section 1983

plaintiff does not have a habeas corpus remedy to challenge

the determination or action for which he alleges a federal

cause of action. However, Heck v. Humphrey is not based

solely on the need to preserve habeas corpus as a federal

remedy. Heck should apply as much to those who are no

longer incarcerated, as to prisoners in custody (where habeas

is an available remedy). In Heck, this court did not simply

say that its decision was based on the availability of habeas

corpus as an appropriate remedy for state offenders to attack

the validity of the fact or length of their confinement. Rather,

the court comprehensively examined the common law of tort

liability and concluded that proof of the illegality of a

conviction is a necessary element of the Section 1983 cause

of action. Unless that conviction has been reversed, there

has been no injury of constitutional proportions, and thus no

Section 1983 suit may exist. Moreover, Heck made it clear

that a Section 1983 action may still lie-where a successful

civil damage recovery would not necessarily imply the

invalidity of the plaintiff's state court conviction. Where,

however, as in the instant case, a recovery in a federal Section

Teena at re enemies ms

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1983 action would necessarily imply that the conviction was

wrong, it is not unreasonable to require a showing that the

conviction was overturned (or otherwise called into question

as allowed by Heck).

Spencer v. Kemna, 523 U.S. 1, 118 S. Ct. 978, 140

L. Ed. 423 (1998) has been cited by some federal courts

which have questioned the continued validity of the Heck

rule when the Section 1983 claimant is not in custody, and

therefore cannot invoke federal habeas jurisdiction. However,

cases, including the one at bar, relying on Spencer to

eliminate Heck’s insistence on an overturning (or at least a

questioning) of the state court conviction rest on a suggestion

by this Court in dictum about the availability of a Section

1983 action. These cases also rely on piecing together

concurring and dissenting opinions of the Justices in the

Spencer decision to define, in effect, a new Heck rule which

was not set forth by this Court in Spencer, and has not been

adopted by this Court in any other case. As stated in the

Petition for a Writ of Certiorari in the case at bar,

this approach ignores the right of the Supreme Court

to declare for itself whether a decision made by it, just seven

years ago, should be overturned or severely restricted

(see also Whisenhunt v. Cornyn, N.D. Tex. 2001, 2001 WL

434594; Rodriguez v. Penobscot County Jail, 2001 WL

376453, D. Me., 2001; Wright v. Smith, 2001 WL 194060,

N.D. Tex. 2001; and Clay v. Allen, 242 F.3d 679 (Sth Cir.

2001)).

Further, as has been noted in Warner v. Orange County

Dept. of Probation, 115 F.3d 1068 (2d Cir. 1997), the Heck

rule bars a state offender from suing under Section 1983 when

his conviction remains outstanding and cannot be reconciled

with his claim under Section 1983. The rule applies most

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clearly where the defendant has been convicted of a crime,

but contends in his Section 1983 action that he was

prosecuted for an unconstitutional reason. Such a defendant’s

outstanding conviction demonstrates that he was prosecuted

with good reason, and that is precisely the rationale for the

Heck ruling.

The core holding of Heck is that annulment of the

underlying conviction is an element of a Section 1983

“unconstitutional conviction” claim, regardless of the

applicability of federal habeas remedy. “Creating an

equitable exception to this tenet not only would fly in the

teeth of Heck, but also would contravene the settled rule that

a section 1983 claimant bears the burden of proving all the

essential elements of her cause of action”, noted by Figueroa

y. Rivera, 147 F.3d 77 (ist Cir., 1998). In deciding Heck,

this Court relied on the time-honored principal that civil tort

actions are not appropriate vehicles for challenging the

validity of outstanding criminal judgments (Heck, 512 U.S.

at 486). This is entirely consistent with New York State law,

with respect to civil actions that may be brought in state

courts to address alleged wrongful prosecutions or arrests.

New York cases have long and consistently held, for

example, that a necessary element of a malicious prosecution

claim is that the criminal proceeding must have terminated

in favor of the accused; that is, the criminal prosecution must

have ended in failure (see Burt v. Smith, 181 N.Y. 1 (1905),

appeal dismissed, 203 U.S. 129 (1906); Curiano v. Suozzi,

63 N.Y.2d 113 (1984); Heaney v. Purdy, 29 N.Y.2d 157

(1971); DiBlasio v. City of New York, 102 F.2d 654 (2d Cir.

1996); Cameron v. Fogarty, 806 F.2d 380 (2d Cir. 1986);

and Broughton v. State of New York, 37 N.Y.2d 451,

cert. denied, 423 U.S. 929 (1975)).

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The result reached in Heck does not, it is respectfully

submitted, leave claimants like Leather without a federal

forum for pursuing a Section 1983 claim. Just like the statute

itself and miany case law decisions have imposed necessary

elements of the cause of action and conditions for bringing

such lawsuits and defenses to the same, Heck’s requirement

for an overturning of the state court conviction before seeking

a federal relief defines one element of a Section 1983 action

where the claimant is or has been subjected to state criminal

charges. Leather had the option to pursue in New York State

courts the very same legal arguments used in his Section

1983 action. Leather could have used those arguments as a

defense at the trial level, or could have used those arguments

as grounds for an appeal. He apparently chose to do neither,

and instead challenged his conviction by means of the Section

1983 lawsuit. The fact that Leather was never in custody,

and therefore did not have a potential federal habeas remedy

available to him, is not what should preclude his Section

1983 action; rather, his failure to seek any review of his

conviction in our state courts is the critical element that

should have required a dismissal of his federal lawsuit.

Leather and other claimants like him should not be placed

in a category who cannot challenge, though federal court

remedies, a state court conviction. He should, we respectfully

submit, be held to the Heck requirements because he chose

to avoid a direct state review of his case, and instead attack

it collaterally in the federal courts. This, we submit, is

precisely the type of lawsuit that Heck ruled inappropriate

and beyond even the broad reach of Section 1983.

The overturning of this Court’s decision in Heck, which

in effect has been accomplished by the Second Circuit in

this case, creates a new and unfair source a liability for police

and peace officers in particular, and for public servants in

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general. Police and peace officers must make arrests and take

other official actions in the daily performance of their duties.

A difficult, but necessary consequence of these actions is

the possibility of facing civil liability when their actions run

afoul of state or federal law. The amici filing this brief

certainly do not seek to limit legitimate federal review of

these actions, by means of Section 1983 lawsuits. We do

respectfully submit that actions deemed appropriate by state

courts, whether expressly or by implication due to a criminal

conviction in those courts, should not be subject to re-

litigation and re-examination in a federal damages suit by

way of a Section 1983 lawsuit. Defendants like Leather can,

and most often do, allege factual questions which raise

potential defenses to the charges pending brought against

them. When those defenses, and the factual allegations which

are the basis for the defenses, are defeated at a criminal trial,

and a conviction is obtained, the officers involved should

not be subject to facing these charges in a civil context, just

because the convicted offender is no longer in custody or

has finished his sentence. The basic principle behind Heck,

before the speculation by some about what a new majority

opinion authored by different Justices of this Court would

be, remains sound and generally accepted law: by simply

requiring that a civil plaintiff prove that his criminal

conviction has been reversed or overturned, parallel litigation

over the issues of probable cause and guilt will be properly

avoided. Our federal courts should not recognize a Section

1983 claim unless and until the state court action has been

invalidated. Certainly, this should apply to claimants, like

Leather, who have every opportunity to raise these issues in

state courts, including our states’ appellate courts.

A claimant’s refusal or unwillingness to do so should not be

the first step in the commencement of a federal Section 1983

action.

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CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

PETER R. KEHOE

Counsel of Record

THOMAS MITCHELL

McGovern, KEHOE AND MITCHELL

Attorneys for Amici Curiae

27 Elk Street

Albany, New York 12207

(518) 432-4318